INTERESTING CASES: November 4, 2020

Sallee S. Smyth

  1. Canales v. Paxton, 2020 Tex. App. LEXIS 7941 (Tex. App. – Austin September 30, 2020) (mem. op.) (Cause No. 03-19-00259-CV)

F and M divorced in 2003. The Final Decree stated that one of the two children requires substantial care because of a disability, was incapable of self-support, that child support for that child should continue indefinitely after her 18th birthday and that both parents had a duty of support. In 2014 F brought a suit to terminate his c/s obligation, asserting that the child no longer required substantial care and that she had been self-sufficient for several years. The trial court denied F’s motion and the CO A affirmed the trial court’s order. Thereafter F sued the OAG under the Uniform Declaratory Judgment Act, asserting that TFC 154.302 (statute authorizing support for adult disabled child) was unconstitutionally vague and does not provide fair notice of the law’s terms and demands as required for due process. The OAG filed a plea to the jurisdiction asserting that F’s suit attempted to enjoin the OAG from collecting c/s for adult disabled children and since only the Texas Supreme Court has the authority to enjoin the OAG, the trial court had no jurisdiction over F’s suit for DJ. Both F and the OAG filed competing motions for SJ. The trial court denied the OAG’s plea to the jurisdiction but granted the OAG’s MSJ, determining that TFC 154.302 is constitutional. The OAG appealed the denial of its plea to the jurisdiction. F appealed the denial of his request for DJ. On appeal, the COA affirmed the denial of the OAG’s plea, determining that F did not seek to enjoin conduct by the OAG, but instead, was asserting that the OAG’s conduct was unauthorized because the statute permitting its conduct was allegedly unconstitutional. Thereafter the COA considered F’s constitutional challenge. The COA holds that the “vagueness” doctrine as denying due process only applies when a statute “proscribes” conduct without fair notice. Here, TFC 154.302 does not “proscribe” any conduct. Further, the statute makes it clear what a court must fine before it can order a parent to pay c/s for an indefinite period. Further, although the terminology used within the statute is not expressly defined, the COA held it was easily interpreted by reference to other resources, ultimately finding that the statute is constitutional. Judgments affirmed.

  1. In re B.F., 2020 Tex. App. LEXIS 8173 (Tex. App. – Fort Worth October 15, 2020, orig. proceeding) (mem. op.) (Cause No. 02-20-00283-CV)

In 2018 F filed for divorce from M. At the time they had one child and the court issued temporary orders naming F and M as temporary JMC. M gave birth to a second child in 2019 and the trial court signed another order naming them JMC of this child as well. In August 2020, BB (an unrelated third party) intervened, claiming that the children had lived with her since the divorce suit began and that M had lived with her off and on during that time. BB asserted that M had mental health issues and obtained a TRO enjoining removal of the children from her care until a scheduled hearing on August 25. After that hearing the court appointed F and M as temporary JMC, naming F as primary and named BB as a PC and gave BB specified rights of possession with the children and ordered telephone/video calls for BB with the kids twice each week. F sought mandamus relief. Relying upon the Texas Supreme Court’s recent ruling in In re C.J.C. (603 SW3 804) the COA examined the record to determine if there was sufficient evidence establishing F as “unfit,” noting that the fit parent presumption must be overcome before a non-parent may be named as a conservator or given specified rights regarding a child. Although BB asserted that F had past drug problems, the COA did not find sufficient evidence that he was “unfit.” As a result, the COA held that it was up to F and not the trial court to determine whether BB should have rights or possession of the children. Mandamus granted.

  1. Fraccionadora u Urbanizadora de Juarez, S.A. de C.V. v. Delgado, 2020 Tex. App. LEXIS 8367 (Tex. App. – El Paso October 22, 2020) (Cause No. 08-16-00046-CV)

H and W, both Mexican citizens from wealthy families, married in Mexico in 1996. As required under Mexican law, the parties executed a Certificate of Marriage and elected a “separate property” regime instead of a “community property” regime. The selection resulted in the parties’ retaining the separate character of their pre-marriage property as well as income earned on that property. In addition, under a s/p regime the personal earnings of a spouse during marriage remain separate property. The parties lived in Mexico until 2008 when the moved to El Paso for security reasons. W filed for divorce in 2013. H filed a counter petition, asserting the existence of a “pre-marital agreement” as embodied within the Marriage Certificate electing the s/p regime. During pre-trial proceedings, W admitted to executing the Certificate. H filed a motion for the court to take judicial notice of Mexican law but the trial court denied it, finding that once the parties moved to Texas, the s/p regime election became ineffective. H filed an amended motion for judicial notice and included a copy of the Marriage Certificate, all of the relevant and applicable Mexican law, and a certified English translation, all of which W attached to her Motion for SJ. The Marriage Certificate contained electronic, not actual, signatures and W alleged that it did not meet the requirements under Mexican law and that no pre-marital agreement existed between the parties. W’s counsel argued that TX, not Mexican law, applied to the premarital agreement issues, making Mexican law irrelevant. W’s SJ affidavit stated that she had never signed a premarital agreement, that H did not disclose the nature of his property to her prior to marriage and that she had not waived her right to disclosure (all matters specified in the TX statute affecting enforcement of premarital agreements). H filed objections to certain evidence and filed his own affidavit stating that the parties had executed the Marriage Certificate electing the s/p regime, asserting that both H and W received benefits from the agreement by protecting the properties inherited from their families. H’s counsel advised the trial court that W had not objected to the amended motion for judicial notice and that it constituted summary judgment evidence before the court. The trial court granted a partial SJ for W, determining that TX law applied and because TX is a community property state, any foreign agreement affecting disposition of marital property was invalid. After final judgment, H appealed. Sitting by assignment, former Chief Justice Ann McClure issued the COA opinion. The COA noted that premarital agreements are presumptively valid and further found that attributes of Mexican and Texas law relating to marital property agreements were relatively similar, allowing persons about to marry to make choices affecting their marital property going forward. The COA found that it would not be against public policy for a TX court to enforce a valid pre-marital agreement executed in Mexico and that as a result, W could not establish that no marital property agreement existed. The COA further held that contrary to the trial judge’s belief that TX law applied to the marital property agreement issues, premarital agreements entered into in another state must be evaluated under the laws of that sister state. W argued that TFC 1.103 required the application of TX law (TX law applied to persons married elsewhere who are domiciled in TX). The COA dismissed this argument because TFC 4.003(a)(7) allows parties to contract with regard to choice of law matters and here, H and W chose to marry in Mexico where the law required them to make a property regime election and they chose the s/p regime. Judgment determining that no premarital agreement existed was reversed and the matter was remanded for further proceedings.

  1. In the Interest of E. W.M., 2020 Tex. App. LEXIS 8487 (Tex. App. – Dallas October 28, 2020) (mem. op.) (Cause No. 05-19-01005-CV)

Parties with one child filed for divorce. They ultimately signed an MSA which included a provision stating “Right of first refusal if the parent in possession is unable to supervise the child overnight.” The MSA further provided that drafting disputes would be resolved by further mediation and if not resolved, by binding arbitration, providing that that the arbitrator had the authority to add terms as necessary to effectuate the interpretation of the MSA and the parties’ intent. Both parties submitted proposed decrees with right of first refusal (RFR) language. M’s version defined overnight as the period between 10pm and 7am and provided that the party in possession had the option of keeping the child if the other parent could not be with the child overnight for any reason and then included exceptions for “sleepovers” with friends, family, school or church related activities. F proposed language similar to M’s, but his version did not include any “exceptions.” The parties were able to resolve all drafting disputes except this one and expressly waived their right to arbitration before the trial court, asking the judge to decide the issue. F objected to M’s version because he felt that there was some lack of supervision by M when it came to “sleepovers” and he argued that no substantive terms could be added to the MSA. The trial court signed M’s version of the decree and F appealed. On appeal, F argued that the RFR was a “core parental right” and according to Troxel the state could not interfere with such decisions and his constitutional rights were being violated. F further argued that In re Lee prevented the trial court from altering the parties’ MSA by adding terms. the Dallas COA rejected both arguments. The COA did not agree that F, as the non-custodial parent, had a “core” parental right of first refusal or a constitutional right that was being infringed. While a parent has the right to determine who their children associate with, F’s right was no greater than the custodial parent’s right. Further, the COA found that the parties expressly waived their right to go to arbitration, agreeing instead that the trial court would sit in the role of the arbitrator as provided for in the parties MSA. Because the MSA provided that the arbitrator had the right to make binding decisions which interpreted the intent of the parties, the trial court did not abuse its discretion when it included additional terms to the RFR provision excepting out normal, routine exceptions as part of defining the general RFR issue that the parties had agreed upon within their MSA. Judgment affirmed.

  1. Danner v. Danner, 2020 Tex. App. LEXIS 8492 (Tex. App. – Beaumont October 29, 2020) (mem. op.) (Cause No. 09-18-00385-CV)

H and W married in the early 1990’s. In 2009 H inherited real property and personal property from financial and brokerage accounts upon his father’s death. In 2015 W had an affair. In 2016 H hired an attorney to draft a proposed Partition Agreement (PA), securing his separate property inheritance and hoping to have W sign it without significant negotiations. W admitted to signing only the page which contained the “notary” acknowledgements (Page 48) and described that H gave her only that page, asked her to get it notarized, which she did by a friend at work. W and the notary both claimed that they had no idea the page was part of an otherwise 50+ page document. W filed for divorce in 2017. H counterclaimed and asserted the existence of a PA. W filed a “verified” denial asserting the signature was not hers. W’s attorney signed the “verification” alleging W’s personal knowledge. W claimed the receiving the counter petition was the first time she learned of the document and claimed that her signature on Page 47 was a forgery. Issues concerning enforceability of the PA were tried to the court in a 2017 hearing in which the parties testified as did the notary and forensic document examiner experts for both parties. The notary remembered only seeing the one page and admitted notarizing both H and W’s signatures although she never saw H sign anything. W’s document expert examined other signature samples of W and concluded that in his opinion the signature on Page 47 (signature page) of the PA did not belong to W. H’s expert reached the opposite conclusion, testifying that there was a strong possibility the signature on the PA belonged to W. At the conclusion of the hearing the judge determined that the PA was not signed by W, was not signed voluntarily and eventually issued findings that the PA was unconscionable. In a second hearing in 2018 the trial court heard evidence regarding the division of the estate. H offered the testimony of his sister who administered his father’s estate. A detailed tracing of inherited funds was not admitted over objection as not having been produced. The sister testified to issuing directions for the transfer of funds from her parents’ account to H’s account. H could offer no bank statements segregating the funds from other community deposits over the years and the trial court concluded that it was all community property. The court divided the estate and according to the values included on H’s inventory, H received 54%. Witnesses testified to the W’s infidelity but the court granted a divorce on grounds of insupportability. The trial court issued findings as requested by H and stated that H’s fault was considered in the division. The trial court’s finding did not specify the value of the property divided and H did not object or seek additional findings. H appealed. H basically challenged the sufficiency of the evidence as to denying enforceability of the PA and the division of property. H asserted that W’s “verified” denial was defective, however the COA noted that H did not object to this at trial and did not object to any of W’s evidence which sought to establish the signature was no hers. Based on the testimony of the W, the notary and W’s expert, the COA found sufficient evidence supporting the trial court’s decision to invalidate the PA. H also complained about the trial court’s characterization of accounts holding his inherited funds as c/p, however the COA determined that H failed to carry his burden to trace and segregate those funds under the clear and convincing standard. As to the property division the COA found that H had waived error by failing to obtain findings as to the value of the estate divided, but even so, using the values only in H’s inventory, H received 54% and did not establish that this division was an abuse of discretion. The COA further affirmed the award of trial and appellate fees to W, reforming the decree to make the award of appellate fees at the Supreme Court conditional. Judgment affirmed as reformed.